If you are going through a divorce or parting ways with a partner with whom you share a child, it’s essential to understand the difference between legal custody vs. physical custody. While many people mistakenly believe custody is all or nothing, this is not the case. Legal and physical custody are two separate issues and concepts. Importantly, there are many different types of custody arrangements that can meet the best interests of a child while supporting a meaningful relationship with both parents whenever possible.

Key Takeaways

How are Legal and Physical Custody Different?

Child custody in Georgia is divided into two different types: legal custody and physical custody. Parents may share both types of custody, or either type of custody can be “sole” and belong only to one parent. In some cases, one parent may have sole legal custody while both parents share physical custody, or the situation may be reversed. Understanding the difference between legal custody vs. physical custody is crucial to ensure you are aware of the rights and responsibilities that come with each.

Legal Custody

Legal custody concerns who has decision-making authority for the child. These decisions may involve various aspects of a child’s upbringing, including education, healthcare, religion, and their overall welfare. When legal custody is sole, one parent is given the authority to make major decisions and they would not need the other parent’s input. In situations where legal custody is shared, parents would be required to consult with each other and collaborate before making decisions about the child’s life.

Shared legal custody arrangements work best when parents are amicable and able to communicate respectfully. But even when parents share legal custody, it doesn’t always mean they will agree on every decision. If parents have difficulty compromising, the court may outline a process for resolving decision-making disputes, such as mediation or another form of alternative dispute resolution. A judge may also give one parent final decision-making authority on specific issues to prevent repeated disputes that could impact the child’s wellbeing.

Physical Custody

Physical custody refers to where and with whom the child lives. It outlines who is responsible for the child’s care on a daily basis. In cases where physical custody is sole, one parent has the primary responsibility for the child’s day-to-day care and residence. When physical custody is shared, the child may alternate or divide their time between each parent’s household.

Shared physical custody doesn’t always mean a true 50/50 split. Although courts strive for equal time whenever viable, shared physical custody is meant to ensure the child gets to spend a substantial amount of time with each parent. The specific schedule will depend upon what is best for the child, school schedules, work schedules, and other considerations.

How are Legal Custody vs. Physical Custody Decisions Made?

Whether the issue concerns legal custody vs. physical custody, courts always make child custody determinations based on the “best interests of the child” standard. Specifically, under Georgia law, a court would apply a number of statutory factors to determine a child’s best interests when evaluating custody arrangements. These include the following:

• The physical safety and welfare of the child
• The love, affection, and emotional bond between the child and each parent
• The love, affection, and emotional ties between the child and their siblings
• The child’s need for permanence, stability, and continuity of relationships with a parent, siblings, and other relatives
• The child’s sense of attachments
• Each parent’s capacity and disposition to provide the child with love, affection, guidance, and education
• Each parent’s home environment
• The stability of the family unit and presence or absence of community support systems
• The mental and physical health of all parties involved
• Any special health or educational needs
• The child’s community ties
• The child’s background and family, cultural, and religious ties
• The least disruptive placement alternative for the child
• The uniqueness of the family and child
• The risks of being in substitute care
• The child’s wishes
• The preferences of the child’s caretakers
• Any evidence of family violence, abuse, substance abuse, or criminal history
• Recommendations by a custody evaluator or guardian ad litem
• Any other factors deemed relevant

Notably, parents do not need to leave legal custody vs. physical custody determinations up to a judge. While parents know their child best, they are free to enter into an agreement outside of court that specifies the custody arrangement. Mediation and the collaborative process can give parents the opportunity to openly discuss their concerns and address key issues in order to reach a decision that will work for the whole family.

Contact an Experienced Georgia Family Law Attorney

If you have questions or concerns about legal custody vs. physical custody for your child, it’s important to consult with a knowledgeable family law attorney who can best advise you. At NVP Family Law, we are dedicated to providing personalized time and attention to clients for a wide range of divorce and family law matters, including those involving child custody matters. We welcome you to contact us for a consultation online or by calling 470-314-0253 to learn how we can help.